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HomeMy WebLinkAbout309950 T2 SYSTEMS INC - CONTRACT - PURCHASE ORDER - 9122842T2 SYSTEMS, INC. SOFTWARE SUBSCRIPTION AGREEMENT THIS SOFTWARE SUBSCRIPTION AGREEMENT is entered into as of (04/13/2612) ("Effective Date") and contains the subscription agreement between (CITY OF FORT COLLINS) (`Subscriber") and T2 SmEMS, INC, ("12" ). Subscriber specific details are contained in the Quote executed by [Ire Parties. Certain terns are defined in Article 13. Article 1- SOFTWARE SUBSCRIPTION Section 1.1 Software Subscription. T2 grants to Subscriber a non- exclusive right to use: (i) one Production Copy of the'12 Flex® Software for its Authorized Concurrent Users and (ii) copies of the handheld ticket -writer software equal to the number of handheld dcket-writer Hardware units purchased by Subscriber, if applicable. T2 grants the Subscription(&) for the Authorized Purposes and no other purposes. At no time may the number of user accounts for the Software exceed the number of Authorized Concurrent Users. T2 has the right to monitor number of Concurrent Users. Subscriber may increase the number of Authorized Concurrent Users in the annular provided for in the Quote. Section 1.2 Term. The Subscriptions granted in this Article 1 and Article 4 are for the lam specified in Section 7.1. Section 1.3 Warranty of Functionality. 72 warrants to Subscriber that: For a period of ninety (90) days after T2 installs the 'l2 Flex® Software, including the handheld ticket -writer Software if applicable, at the Subscriber's premise or installs it on the Hosted System, whichever the case may be, the Software will provide at least the functionality contained in the then -current product literature as posted on T2's corporate websitc, and will perform without errors which would significantly affect its ability to provide that functionality. This warranty is contingent upon Subscriber advising T2 of any failure of the 12 Flex(D Software to perform within rrurety (90) days after the Installation Date. The notice to T2 shall specifically identify the error or errors. T2's services in connection with the correction of the errors shall be provided without charge to Subscriber. T2 does not warrant that the operation of the T2 Flexe Software will be uninterrupted or error free. Further, T2 does not warrant that the T2 Flex(D Software will operato on any particular configuration of software, operating system or computer system. Section 1.4 No Other Warranties. 'flu: warranties made by 12 in Scotian 1.3 with regard to both Iho 12 Flex ® Software and the haralield ticket -writer Software are in lieu of all cabin representations or warranties, express or implied, including without limitation any implied warranties of design, merchantability, or fitness for any specific or general purpose and those arising by statute or by law, or from a course of dealing, or usage of trade, all of which are disclaimed. V ERSrON U7151 l Section LS Installation. Except as provided in Section 3.2, 12 shall install tiro Sollwarc and confirm that the Software is working properly. Once the Software is installed, the Subscriber shall verify that the installation is complete and the Software is working properly. Article 2. HARDWARE Section 2.1 Applicability. The provisions of this Article 2 apply only if Quote states that 12 or an authorized 12 Systems distributor will sell hardware (the "Hardware") mid related software. In addition, the provisions of Article 2 only apply to Hardware purchased through T2 or an authorized T2 Systems distributor. Any Hardware purchased from sources outside of T2 will be the sole responsibility of the Subscriber. T2 will not be responsible for the failure of the software to perform to the extent that such failure to perform is due to the failure of a third party function, such as Internet availability required for the connection between the Hardware and Flex or the wireless network availability required for the T2 Software to be able to send and receive data. In no event shall 72 be liable for the failure of the software to perforru if such failure arises clue to the combination of the software with third party hardware or software. 12 shall not cuvcr repair, labor or replacement officals that are by nature expendable. Section 2.2 Handheld Hardware Warranty. 12 warrants to the Subscriber that the Handheld Hardware will be free from defects in workmanship and materials, order normal use, for one year (365) days from the date the Hardware is delivered. Section 2.3 Access Revenue Control Hardware Warranty. 12 Systems warrants that all hardware sold will be lice from any defects in material and workmanship for the warranty periods described below under normal operating conditions when installed in accordance with the 72 Systems installation instructions, normal wear and tear excepted. The warranty periods for the following products are: Vehicle Gates: 2 years or l million cycles. (Whichever comes first) (ii) Revenue equipment (including firmware) : l year (iii) Loup Dcfcctors: I year The warranty period shall start from the dale of installation of the product by certified installation personal. if a project requires a delayed warranty start date, the distributor or customer must request a delayed start ditto in writing five business duys before the scheduled installation dine. T2 Systems will review and accept on a case by case basis. No distributor shall have the sincerity to bard 12 Systems to any warranty beyond that extended ftl=in. Section 2.4 Exclusive Remedy. Should a Hardware Error occur during the warranty period and you notify 12, Subscriber's sole and exclusive remedy shall be, at 72'n sole option and expense, to repair or replace the Hardware parts which leave been found to be defective. At T2's sole discretion, parts may be repaired as opposed to (wing replaced. T2 may replace parts with others of like kind arld quality. T2 will provide service at any T2 service center VERSION 071511 findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration. IN wrrlNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date. T2 Systems, Inc. Subscriber LJFr_ 1T-b 'V blw, rig ro -1,,GnV-r�Ijl�(L�-(. By; Y�— Tim g:nn Nance: Name: .J xa-,4p-S/3 —1k'(-zL4— Coo . Title: T'itle:��<trD-2 ~ ,(-iS rg fay^-r- L"r-- VeMION07 Is I EXHIBIT: PCI AND P1DSS ContPL1ANCIt DEFINITIONS A Self Hosted Subscriber's instance of T2 Flex and the T2 Credit Card Solution is installed entirely on the Subscriber's site(s). A T2 Hosted Subscriber's instance of'12 Flex and the hosted compoacuts of the T2 Systems Credit Card Solution are installed and run in the T2 Hosting Environment. A T2 Hosted Subscriber has both hosted and Non-Hostcd Components. The Standard Network is pan of the 72 Hosting Environment and contains T2 Flex servers, l2 e-Business Solutions Servers, and other equipment. T2 Hosted Subscribers who do not process payments through the Hosting Environment use only the Standard Network. The Standard Network uses standard, commercially reasonable security practices to control and protect the transmission of door to and from the Hosting Environment. The Payment Network is part of the 12 Hosting Euviromnent and is used solely for payment processing. T2 Hosted Subscribers who process payments through the Hosting Environment use the Standard Network for routine Flex T2 e-Business Solutions operational processes and the Payment Network for payment processing. The Payment Network will be secured to the Puyment Card Industry Data Security Standard (PCI DSS) in 2010. T2 Systems is responsible for maintaining PCI DSS compliance of theT2 Hosting Envirunment Payment Network. Non -Hosted Components are considered to be any software components of'r2 Flex, T2 e-Business Solutions, and/or die 12 Systems Credit Card Solution installed on hardware located at the Subscriber site(s) and any hardware located at the Subscriber site(s). Noo-Hosted Components are not part of the U Hosting Environment, the Standard Network, or The Payment Network, and are not the responsibility of'f2 Systems. The T2 Hosting Environment includes the 12 servers, networking equipment, led related devices located at 12's dam center, and the software and data that reside on that equipment. Tlero ore two ❑etwed(.S within the T2 Hosting Environment: Slundard and payment. 11. T2 SYSTEMS RESPONSIBILITIES T2 Systems shall provide Payment Cud industry Payment Application Data Security Standard (PCI PA-DSS) validated software for processing credit card puymcnts ('12 Systems Credit Card Solution), including a PA-DSS Implementation Guide containing guidelines for installing and configuring the 12 Systems Credit Card Solution to support Payment Card Industry Data Security Standurd (PC[ DSS) compliance.12 Systems shall maintain the PCI PA-DSS validation of Ihc'I2 Systems Credit Card Solution its PA-DSS Implementation Guide. V nRSION 07151 I Note; Use of PCI PA-DSS validated software and its PA-DSS Implementation Guide does not guarantee merchant's PCI DSS compliance. Focomplete and cui rent PCI DSS requirements, Subscribers should reference the Payment Card Industry Security Standards Council- (PCI SSC) website j at www.B ncisec_ uri tvstandards. ore. ore. 20 any product warranties from PCI SSC, including, without lirnitation, any implied For both the Standard and Payment Networks, T2 is responsible for the security of the warranties of merchantability, from for purpose or neninfringement, all of which are expressly data ones it is inside the Hosting Environment and for using commercially reasonable data disclaimed by PCI SSC. All rights and remedies regarding products and services that have security practices to control and protect the transmission of data to and from the Hosting received acceptance from PCI SSC, shall be provided by the party providing such products or Enviromnent. services, and not by PCI SSC or any payment brands. T2 Systems shall maintain the Payment Network in a validated PCI DSS compliant euviromncnt, including use ofPCI PA-DSS validated software for processing credit card IV. NEWLY DISCOVERED SECURITY VULNERABILITIES payments, the "I.2 Systems Credit Card Solution, configured as directed by its PA-DSS bnplemcntation Guide. T2 Systems shall provide notice to the Subscriber of any newly discovered security 111. SUHSCRINER I2EEYONSmII.CfIES vulnerabilities in lire 12 Systems Credit Card Solution and, fur'12 Hosted Subscribers, in the T2 floating Environment Payment Network, and provide network security updates, software updates, Subscribers are responsible forproviding and maintaining a cCard Industry ardor updates to tee PA-DSS Implementation Guide to remedy those vulnerabilities as soon as is Security Standard (PCI USS) compliant envh�onmznt at their site(s) inn which the components of he t reasonable and practical following discovery of the vulnerability. T2 Systems Credit Card Solution may be installed, and for validation of that environment as required by their payment gateway, merchant bands, payment bland, or other entity with which the is n tic T2 Systems is not responsible far providing notice to T2 Subscribers regarding security regarding Sy tein Subscriber is contracted to process payments. ns vulnerabilities software or hardware flint do require changesSubscribers to the Systems Credit Card Solution, the 12 Systems Credit Card Solution PA-DSS Implementation Guide, The Subscriber is responsible for configuring T2 Systems Credit Card Solution according and/or the T2 Hosting Environment Payment Network that do not affect configuration of hosted to the PA-DSS Intplemen[ation Guide. or Non -hosted Components. Ouse the T2 Systems Credit Card Staining has been implemented the Subscriber For Non -hosted Components, Subscribers are responsible for installing software updates Subscribers are responsible far maintaining Non -Hosted Components t of the Systems provided byT2 Systems to remedy any newly discovered security vulnerabilities in the 12 Credit Credit Cad Solution, including any in a timely manger of any updates to the TZ o t Systems Credit Card Solution and for making any changes identified in updates to the PA-DSS ftware and/or P Systems Credit Card Solution software ardor PA-llSS Implementation Guide provided by T2 Implementation Guide as soon as is reasonable and practical. Systems. Subscribers are responsible for notifying T2 Systems as soon as is reasonable and Please nurc: Acceptance of a given payment application by the PCI Security Standards Council, LLC (PCI SSC) only applies to dre specific version of that payment application that was practical should the Subscriber discover a scattily vulnerability in or related to the T2 floating Environment Payment Network (T2 Hosted Subscribers only), the 12 Systems Credit Card "12 reviewed by a PA-QSA and subsequently ncccpted by PCI SSC (tire "Accepted Version"). [rally Solution, and/or the Systems Credit Card Solution PA-DSS Implementation Guide. aspect of a payment application or version thereof is different from that which was reviewed by V. INFORMATION SECURITY BREACH the PA-QSA and accepted by PCI SSC — even if the different payment application or version (the "Alternate Version") conforms to the basic product description of the Accepted Version — then Subscribers are responsible for notifying T2 Systems should an information security the Alternate Version should not be considered accepted by PC[ SSC, nor promoted as accepted breach of or relating to the T2 Systems Credit Card Solution and/in-T2 Systems Hosting by PCI SSC. Environment Payment Network (T2 Hosted Subscribers only) occur as soon as law enforcement No vendor ur other third party any refer to it payment application its "PCI Approved" or "PCI and contractual obligations to other payment entities require andfur allow. T2 Hosted Subscribers shall follow the instructions in the most recent version of the T2 hosting Enviromnent hosted SSC Appmvcd", lard no vendor or other third party may otherwise slate or imply that PC1 Subscriber Security Incident Response Plan. The Plan will be e-mailed to T2 Hosted Subscribes SSC has, in whole or pan, a talplul or approved any aspect of a vendor or its services or payment annually or as it is updated applications, except ro the extent and subject to lire terns and restrictions expressly set forth in a written agreement with PCI SSC, or in it PA-DSS letter of acceptance provided by PC( SSC. All T2 Systems shall notify Subscribers of any security breach of or rclaring to tile'12 other references to PCI SSC's approval or acceptance of a payment application or version thereof Systems Credit Card Solution andor'12 Systems Hosting Environment Payment Network as are strictly and actively prohibited by PCI SSC. soon es law culotmeneut and contractual obligations to oiler Subscribers and payment cmilies When granted, PCI SSC acceptance is provided to ensure certain security and operational require and/or allow. Notification of T2 Hosting Environment breaches not related to a security vulnerability in do :T2 Systems Credit Card Sohnion may be made ro'f2 Hosted Subscribers clmractelistics important to the achievement of PCI SSC's goals, but such acceptance dues not only. under any circumstances include or imply any endorsement or warranty regarding the payment application vendor or the functionality, quality, or performance of the payment application or airy 72 Systems shall cooperate with law caforcumcm and assist with the investigation of any other product or service. PCI SSC does not warrant any products or services provided by security breach of or rotating to the 72 Systems Credit Card Solution and/or 12 Systems third parties. PCI SSC acceptance does not, under any circumstances, include or imply V naslos 071511 21 VERSION 07 t5I l Hosting Environment Payment Network. V I. TERMINATION OF SERVICES (M HOSTED SUBSCRIBERS ONLY) T2 Hosted Subscribers who persist in material deviations from the PA-DSS Implementation Guide not approved by the T2 Systems Chief information Officer, or n who persist in material non-PCI DSS compliant security practices, or a who fail to implement updates to tile'[- Systems Credit Card Solution software and/or PA-DSS Implementation Guide in a timely murder, or el who fail to report a security breach as required by the T2 Hosting Environment Hosted Subscriber Security Incident Response Plan, or a whose operation is deemed byT2 Systems to be a material risk to the security of the T2 Hosting Environment, may be disconnected from the'12 Hosting Environment Payment Network or the T2 Hosting Luviroament in its entirely at the discretion of the T2 Systems Chief hdonnation Officer. VERSION 071511 T2 Systems - Confidential Quotation Im For: City of Fort Collins - T2 Flex Renewal SYSTEMS Quote Issued: 03/14/2012 Quote Expires: 05/14/2012 Quote ID: FM031420121012 04/13/2012 - 04/13/2013 - 04/13/2014 - Line Description Quantity Unit Price Term 04/12/2013 04/12/2014 04/12/2015 Software Subscription I TZ Flex Permit Management and Enforcement Plus Pack 1 $21,896.00 Annual $21,896.00 $22,990.80 $24,140.34 (3 year Subscription) - 10 Concurrent Users. 2 T2 Flex Hosting Fee for Organizations with 10 or more 1 $12,000.00 Annual $121000.00 $12,600.00 $13,230.00 users (3 year subscription). 3 T2 Flex Hosting Fee for Organizations with 10 or more 1 -$2,000.00 Annual -$2,000.00 -$2, 100.00 -$2,205.00 users (3 year subscription). DISCOUNT. 4 T2 Flex eBusiness Hosting Fee (3 year subscription). 1 $3,000.00 Annual $3,000,00 S3,150.00 $3,307.50 5 Hosted T2 Flex Test Database Instance (3 year 1 $4,325.00 Annual $2,811.25 $3,178.88 $3,568.13 subscription). 7 Unlimited access to Recorded TrainingLibrary. 1 $395.00 Annual $395.00 $395.00 $395.00 Total Annual Investment: $38,102.25 $40,214.68 $42,435.97 Notes TZ Systems has made every effort to insure that all relevant information received by City of Fort Collins pertaining to requested software, hardware and implementation services has been included in this quotation. Please check this quotation carefully. Our goal is to provide the most accurate information possible. T2 Flex is a subscription based service. TZ Flex can be hosted by T2 Systems at nFrame (co-tocation facility) in Indianapolis or hosted by the organization. If the organization hosts the application and database, an Oracle license is required. T2 can provide the Oracle license for an additional charge. Subscriber shall pay to T2 Systems Subscription Fee for the use of the Software, fixes, patches and updates to the Software applicable to the Subscriber's Purchase Order, and technical support services provided hereunder in accordance with the applicable Purchase Order. TZ Systems reserves the right to increase the Subscription Fee by the five percent (5%) annually. T2 Systems' standard payment terms are net 30 on a progress -billing basis. Maintenance and Support T2 Flex new releases and technical support are incorporated into the subscription price. T2 releases on average two (2) upgrades per year. Technical support is available Monday -Friday from 8am to 8pm EST. A toll free number and a -mail is provided. Technical support can assist you with your TZ Flex questions including assistance in writing reports. Hardware maintenance and support is provided for the first year at no additional cost. You have the option of renewing maintenance and support on all T2 supported hardware after the first year. Hardware and maintenance support is renewed on an annual basis. r2 Systems. Inc. 7835 woodland Drive, Suile 250 Indianapolis. Indiana 48278 or at such other location as may be designated by'M. Subscriber agrees to follow the Return Materials Authorization Process as set forth in Section 2.8. Section 2.5 Hardware Repair Limitations. T2's liability for Hardware repails under this Agreement shall be limited to the actual cash value of the Hardware in operating condition at the time of the claim. Except as otherwise expressly agreed by T2, nothing herein shall obiiga[e'1'2 to repair or replace aesthetic or structural items including, but not limited to, damage to the case or semen from dropping, warping of any kind to housing, case or frame of the Hardware. Subscriber agrees that it is responsible for repair costs associated with worn out or damaged touch screens or LCD modules. This Agreement only applies to the operation of the Hardware under the conditions for which it was designed, and does not cover damage resulting from external causes such as, but not limited to, damage resulting from a collision with any object or from fire, flooding, sued, dirt, windstorm, hail, earthquake, act of God, damage from exposure to weather conditions not anticipated or contemplated by the manufacturer's specifications, battery leakage, theft, misuse, abuse, damage from failure of, or improper use of, any electrical sources or connection to other products not recommended for interconnection by the hardware manufacturer. Subscriber shall perform all preveatative maintenance recommended by the Hardware manufacturer to maintain the Hardware in operating condition and Subscriber agrees that any loss or damage resulting from the failure to provide the Hardware manufacturer's recommended maintenance is not covered by this Agreement. Section 2.6 Obsolete Hardware. While it is'12's intention to support Hurdwaro for as long as is technically and financially tensible, 22 reserves the right to discontinue maintenance and support of obsolete Hardware six months alter providing written notice to Subscriber. After that time, q2 will offer repair services on the then -current standard rates for time and materials for the obsolete Hardware so long as parts and labor are reasonably available. Section 2.7 Engineering Modifications. All products of T2 Systems are subject to design ald/or appcmance modifications which we production standards at the time of shipment. T2 Systems may, but shall not be required, to, modify, or update products shipped prior to a current production standard. Section 2.8 Return Materials Authorization (RMA) Process. in Lite event that Subscriber experiences a malfunction with respect to the Hardware, Subscriber shall call T2 technical support in order to determine the cause of the malfunction. If T2. technical suppon determines that Lite Hardware dues require service, the teclmicieu will iuSurul Subscriber as to the proper return procedure•.. A Return Material Authorization Number (RMA) must be oblu l before product is rammed. Subscriber Shull return Lite damaged Hardware, together with it description of Lite malfiaction, to T2 or other service location as directed by die'l'2 teemician. Subscriber shall remove the Flush ROM or RAM cards prior to shipping the Handheld Hardware to the appropriate 42 service center. Subscriber is responsible for all height and insurance charges inbound to the service center. T2 is responsible for all freight and insumnec charges outbound lion the service center. T2 Systems is not responsible for removal, installation, or any incidental expenses incurred in replacing the defective item or shipping We product to or from the distributor or customer. Section 2.9 Restocking Fee for Returned Hardware. The Subscriber may Will handheld and'I2 Point of Sale hardware within 30 days of delivery if the goods are in an unsoiled, unchanged, new, ant[ re -saleable cuedilimn. The Subscriber may cancel access and revenue control hardware within three (3) weeks of T2 receiving a purchase order. T2 charges a minimum of 25% restocking fee on all equipment that is returned unless the delivered goods were damaged or found malfunctioning upon arrival by purchaser. The credit will be issued only oiler the equipment is inspected and determined by an Employee of 72 to be in unsoiled, undamaged, new and resaleable condition. The Subscriber will pay for all freight charges to T2's plant unless the delivered goods were damaged or found malfimctioniug upon arrival, in which case the seller shall pay all return freight charges. Subscriber and/or the Distributor agree to inspect all delivered pieces of ARC hardware immediately and report any visible damage within 48 hours to T2. Failure to report damage in this time frame will result in the inability to replace damaged goods. Hidden damage (i.e, electrical issues, boani malfunctions, etc.) must be reported within 7 days. Section 2.10 Limitation of Liability. THE WARRANTIES AND REMEDIES SET FORTH IN THIS Article 2 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, CORRESPONDENCE WITH DESCRIPTION, SA'I'ISFA(,TORY QUALITY AND NON -INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY 72. T2 SHALL. NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, LOSS OF INFORMATION OR DATA, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR 1N CONNECI'lON WITH THE SALE OR USE OF THE HARDWARE, WHETHER BASED IN CONTRACT, TORT' (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER 'THEORY, EVEN IF T2 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS SUBSCRIPTION AGREEMENI' IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. T2'S ENTIRE LIABILITY SHALL BE LIMITED TO REPLACEMENT, REPAIR, OR REFUND OF THE PURCHASE PRICE PAID, AT T2'S OPTION. Article 3. HOSTING SERVICES Section 3.1 Applicability. The provisions of this Article 3 apply only if Quote states that T2 will provide hosting services ("llosting Services"). Section 3,2 Software hnstallutlmn. 72 shall install the Sufiwaro on the Floating System. Section 3.3 Access. In consideration of the payment of the Hosting Fee, l2 will provide Subscriber access to the Software via the Hosting Services and llosting System. Subscriber may access the Floating System using Subscriber's remote access equipment. T2 shall undertake commercially reasonable efforts to provide Subscriber with consistent service in a shared hardware enviromnent (i) insulated from changes in the Internet, and (it) sufficient to access the Software on q2 Application Server through the Internet twenty-four (24) hours per day, seven (7) clays per week, except for routine natlltenaaee performed pusuael to notice to Subscriber. '12 shall monitor T2's Application Scrvcr and undertake commercially reasonable V GKsioN 071511 3 VERSION 071511 efforts to restore promptly all failures of service at no additional charge to Subscriber. Subscriber shall be solely responsible for (i) providing brternet devices and supported browsers, and (ii) Internet connections, at Subscriber's sole cost and expense. Section 3.4 Hours of Operation. Generally, connectivity will be available seven (7) days par week, twenty-four (24) hours per day. Subscriber's access is subject to outages for scheduled maintenance activities mid outages attributable to failure of the Subscriber's telecommunications provider to provide an Internet connection. Whenever practical, scheduled maintenance activities will be performed [outside] the hours of 8:00 a.m. and 8:00 p.m Er. Notice of scheduled maintenance shall be provided to Subscriber via email. Section 3.5 blaiutenauce and Updates. T2 shall provide maintenaace for the Hosting System, including updates and patches and shall install any updates or enbancements for the Software that are released by T2 to its Subscribes. T2 will uotffy Subscriber when the updated version is available. Section 3.6 Improvements. in order to maintain the quality of the Hosting Services provided by T'2 hereunder, T2 reserves the light to change ale hours of operation and other facilities and procedures relating to access and use of its Hosting Services. T2 will provide Subscriber with ten (10) days notice prior to any planned improvements that may materially affect the Hosting Services. Section 3.7 Passwords and Security. Subscriber will control the issuance of passwords and user IDs for the use of the Software by Subscriber's Authorized Concurrent Users. Subscriber shall be responsible for the confidentiality of oil those passwords. Subscriber acknowledges that it will be responsible for all liabilities incurred through use of any password assigned to Subscriber, and that any transactions under Subscriber's password will be deemed to have been performed by Subscriber. Section 3.8 Ownership of Data. Subscriber shall maintain ownership of any Subscriber Data provided to T2 or input to the Software pursuant to this Agreement. TL shall not supplement, modify or alter any Subscriber Data except as directed or requested by Subscriber (other than technical modifications necessary to uploadifarmat the Subscriber Data to the Web Site), Section 3.9 Limitation of Liability. T2's total liability, if any, with respect to the subject mama of the Hosting Services (including, but not limited to, liability arising out of contract, tort, strict liability, breach of warranty or otherwise), is limited to the fees paid by Subscriber for the Ilosting Services in the three (3) months prior to the act that gave rise to the liability; provided, however, that this limitation does not apply to damages to Subscriber directly mused by willful or malicious misconduct by T2 or its employees or by any claims brought against Subscriber based upon a violation of third party rights by the Software, which are covered by Section 10.4. T 2 WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENfIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST' OF ANY SUBSTITUTE SERVICE), WHI, I'HER OR NOT FORESEEABLE AND EVEN IF T2 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL APPLY TO ANY ACTION OR ARBITRATION HEREUNDER. YaaslnN 071511 Section 3.10 Warranties. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY SET FORTH IN THE QUOTE, 72 MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE HOSTING SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCFIANTAI31LrrY AND FITNESS FOR A PARTICULAR PURPOSE, Section 3.11 Perfurmunce. ALTHOUGH '12 WILL TAKE REASONABLE STEPS TO PROVIDE ERROR-FKEE AND CONTINUOUS HOSTING SERVICES, T2 DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE IlOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR -FREE. AS A RESULT, THE HOSTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. Ar cle 4. PROFESSIONAL SERVICES. Section 4.1 Applicability. The provisions of this Article 4 apply only if the Quote states that T2 will provide web site development services or other custom development services (collectively, the "Professional Services"). Section 4.2 Web Site. T2 shall provide a Web Site for Subscriber. T2 and Subscriber contemplate that the Web Site will be enhanced over time and unless T2 is providing Hosting Services, the Web Site will be hosted by Subscriber. Section 4.3 License. Subject to payment by Subscribe of any Web Site Fee which is due, T2 grants to Subscriber a non-exclusive right to use the Web Site prototype and any additional enhancements or customization in connection with the use of ale Software under the same Terms and Conditions. Section 4.4 Web Site Development. If the Subscriber deteintncs that the Web Site requires additional enhancements or custonlizatiou, T2 shall provide development services relating to the Web Site. T7.'s services in assisting Subscriber in this regard shall be provided on a Time and Materials Basis. Article 5. TECHNICAL SUPPORT Section 5.1 Technical Support Services. T2 offers the Subscriber technical supportes described in Section 13.9. Section 5.2'Pechnicnl Support Hours. T2 offers 'Technical Support from 8:00 a.m. EST to 8:00 p.m. EST Monday through Friday excluding holidays. The'rarget Response Time is two (2) hours. Section 5.3 Updates and Enhancements. TO the extent that T2 releases au updated or enhanced versiva of lire Software during the Subscription Term, T2 will make the updated version available for download by Subscriber at no additional charge. Subscriber shall be permitted to use the updates and enhancements to the extent provided in Article 1. Section 5.4'I'celulical Support Exclusions. 'l2will lot be responsible for failure to correct a problem to Ile extent that T2 is unable, to replicate the Wastory 071511 problem, or if the problem is caused by: (i) misuse of the Software, (ii) failure by Subscriber to utilize compatible computer and networking hardware and software, (iii) interaction with software or firmware not provided by T2, (iv) any change in applicable operating system software, or(v) the failure of Subscriber to install updates to the Software provided by T2. A Subscriber who is not current with their amount will not be eligible for technical support. In any such event, 'f2 will advise Subscriber and, upon request, will provide such assistance as Subscriber may reasonably request with respect to such problem at T2's then -current standard rates for time and materials. Section 5.5 Cooperation. Subscriber acknowledges (i) that certain services or obligations of T2 hereunder may be dependent on Subscriber providing certain data, information, assistance, or access to Subscriber's systems, (collectively, "Cooperation"), and (ii) that Cooperation may be essential to the peiformaace of such services by 22. The parties agree that any delay or failure by T2 to provide services hereunder which is caused by Subscriber's failure to provide timely Cooperation reasonably requested by 12 shall not be deemed to be a breach of T2's performm e obligations under this Agreement. Section 5.6 Supported Versions of Flex. T'2 requires all 12 Flex iustunces hosted by the Subscriber or hosted by T2 on behalf of Subscriber for either production or for testing to be the current or next most recently released T2 Flex application software version. T2 reserves the right to upgrade any T2 hosted T2 Flex instance with 24 hoar notice to the Subscriber. Notice may be provided via email or phone. Article 6. PAYMENT Section 6.1 Fees. Tire Subscription Fee, Web DevelopmendeBusiness, Hosting Services Fee, Professional Services Fee, Hardware Fee and any additional agreed upon fees (collectively, the "Fees") shrill be payable according to the terns set forth in the Quom. Partial periods shall be prorated. Notwithstanding anything to the contrary conutincd herein, if this Agreement is terminated by T2 for cause or by Subscriber for convenience prior to the expiration of the Guaranteed Minimum Commitment (as set forth in the Quote), the unpaid balance for the Guamnteed Minimum Commitment shall accelerate and be duo and payable in full immediately upon acceleration. Section 6.2 Change in Fees. T2 will increase file Fees by five (5) percent per year, provided T2 notifies Subscriber in writing at least sixty (60) days prior to it renewal period. If T2 hails to provide u sixty (60) day notice, then the increase in fees will not become effective until the beginning of tire Cost month following the sixty (60) day period after T2 notified Subscriber of the increase. Section 6.3 Certain 'faxes. If applicable, in addition to the ma idcmdon provided herein, Subscriber agrees to pay amounts equal to may sales, use, excise or other taxes or any custom duties levied against or imposed: (i) upon the subscription of the Suftwarc to Subscriber, or (ii) upon the Authorized Production Copies and the permitted back-up copies used by Subscriber, or (iii) upon the support provided under Article 5, or (iv) resulting from this Agreement, or any activities hereunder; but Subscriber shall not be obligated to pay any luxes based on T2's net income. If Subscriber claims an exemption From any such faxes, Subset iber shall provide to T2 an appropriate exemption certificate. if Subscriber challenges the applicability of any tax, Subscriber shall nevertheless pay the same to T2 and Subscriber only thereafter challenge tine tax and seek it refund Ihemof. Subscriber agrees to indemnify and hold harmless T2 from any cost, fee, penalty or expense (including counsel fees) in connection with any assertion by any taxing authority that T2 has failed to collect and math their sales or use lax on transactions hemunder or to pay any property taxes on the copies of the Software in Subscriber's possession but shall have no such obligation to 22 with respect to any amount paid by Subscriber to T2 and not remitted to the relevant taxing authority. Section 6.4 Invoices. Invoices for payment of amounts due to T2 under this Agreement shall be itemized in reasonable detail. If Subscriber does not dispute any part of an invoice, Subscriber shall pay the amounts due within thirty (30) days of receipt. if Subscriber disputes one or more items of an invoice, Subscriber shall: (i) pay T7. within thirty (30) days of receipt of the invoice the amounts for items not disputed; and (ii) notify the Finance Department of "12 within those thirty (30) days in writing of its dispute of one or more items of the invoice, identifying the item or items in dispuro and setting forth in reasonable detail the basis for each dispute. Failure to so notify the Finance Department of T2 of each item in dispute and the basis therefore shall be deemed acceptance of those items, and Subscriber shall forthwith pay T2 therefore. Section 6.5 Fallure to Make Payment, If Subscriber fails to make any payments within lhhty (30) days after the amount is due pursuant to this Agreement, then the amount, without the necessity of any notice or action by 'l2 shall become due and payable together with interest thereon floor the date of nonpayment at twelve percent (12%) per a:mum [or the highest rate permitted by law if less than twelve percent (12%)I and with reasonable attorneys' fees and other costs of collection. The non-exclusive subscription granted pursuant to Article 1 of this Agreement may be terminated by'12 with thirty (30) days prior written notice in the event Subscriber fails to make any payments when due under this Agreement. Section 6.6 Payment by Automated Clearing House. If applicable, Subscriber agrees that the Subscription Fee and Web Site Fee (if applicable) shall be paid by Automated Clearing Ifouse debit. Subscriber agrees to complete the ACH Authorization Agreement accompanying this Software Subscription Agreement. If Subscriber is unable to execute an ACH Authorization Agreement, Subscriber shall make payment to T2 by check, credit card or debit card in the mnount payable hereunder. Furthennum, Subscriber agrees to submit such payment to'12 so that payment is received by T2 on or before the Subscription Fee due date. Payment Options Annual Subscription paid in advance Monthly Subscription paid in advance. Monthly payments arc subject to it 3% prucessing fee. ACH (see above) Section 6.7 Late Charges. If Subscriber dues not nmke timely payment of the Subscription Fee to T2 of any amount payable hereunder, in addition to the remedies available to T2 at law or equity,'12 may collet: interest on lire sum then owing at the rate of 12%per month from the due date until payment by Subscriber; provided, however, that in no event shall the aggregate interest charges exceed the maximum rate of interest which could be charged order applicable law and T2 may suspend services until all amounts due are collected if vmtslON 071511 7 VHR51ON 071511 payment is not received within thirty (30) consecutive days, T2 has tine right to suspend services provided hereunder. Article7. TERM AND TERMINATION Section 7.1 Term. The term of the Subscriptions granted in Atticle 1 unit the provision of support under Article 5 shall commence on the Installation Date or three (3) months from the Effective Date of the Software Subscription Agreement, whichever is earlier, and shall continue for the period set forth in the Quote (`YnitfnlTerm"). If the Subscriber delays installation beyond the timeline in the Quote, the Subscriber may incur additional installation fees. If a delay in installation is caused by T2, the initial tern of this Agreement shall commence at the date fire Software is installed and the Subscriber executes the installation verification acknowledgement. Except its may Abe u he wise provided in the Quote, the term of the r Subscriptions and support shall-Hvu'"1ADiir renewed for an addition term of one (1) year *'1 'f: modialefy-alloo-thexpimtioaso-any-then-eurrenE[arrn,11ullha Vither 12 or Subscriber I gives notice of-b- renewal to tier other at least sixty (60) days in ayvance of the expiration of the then-curmatterm. 11FIU3-yp XGf O r-o�.ei+-s�rro•a.tc.. oNr....�( Section 7.2 Reeugngement When a project does not stay on the agreed yrr-<r113 upon schedule as defied in a mutually agreed upon Project Plan because the Subscriber did not meet their deliverables, or if the Subscriber requests a new date after a corminued data has been scheduled, the Subscriber will be responsible for, a) Acceleration of payment for all Professional Services completed to date (i.e., I&T, project management costs, efiiz, interfaces, etc.). b) All hard costs, including travel. c) Rebooking fees. d) Ally necessary rework (repeat of training, additional data sample, additional Phi boors) would be billed at restart. e) A reengagement fee of 20% of tine total professional services plus travel expenses associated with the reengagement. Section 7.3 Termination. Subscriber may terminate the Subscriptions granted in this Abnumcnt, ally support under Article 5, tiny Professional Services, and any Hosting Services by notice of son-roncwal given in accordance with Section 7.1 or by uuticu given in accordance with the provisions of Article 11. '12 may terminate the Subscriptions granted in the Agreement and ally support wider Article 5 by notice of non -renewal given in accordance with Section 7.1, by termination as provided in Section 6.5 or upon fifteen (15) days prior written notice in the event Subscriber uses the Sullware in a wanner not permitted under the Agreement. Section 7.4 Return of Nlatcrials. Upon termination of the Subscription of the Software or Handheld Software for any reason, Subscriber shall destroy all copies of the Software or Handheld Software and tiny other materials received from 12 wild furnish'T2 a written Statement certifying dirt through Subscriber's best efforts, and to the best of VERSION 07 151f Subscriber's knowledge, all copies of the Software or the Handheld Software, including all copies of Client Components, and any other materials received f am'I2, have been destroyed. Section 7.5 Return of Subscriber Data.. Upon termination of the Subscription of the Software, T2 shall, at Subscriber's request, return multiple data files which contain the Subscriber's data in a tab delimited, flat file forrnat of '1218 choosing. To accommodate special requests to receive data in other formats, Subscriber will be responsible for additional time said materials required to accommodate this request. Section 7.6 Outstanding and Future Payment Obligations. All payment obligations between the parties that are outstanding as of the effective date of termination, or which accrue hereunder prior to the effective date of termination or which accrue for services that are completed after the effective date of termination shall survive the termination of this Agreement. Article 8. SUBSCRIBER DATA Section S.I Confidential Treatment. All Subscriber Data which is submitted by Subscriber to T2 pursuant to this Agreement will W safeguarded by 12 to tine same axiom that T2 safeguards darn relating to its own business; provided, however, ifSubscriber Data is publicly available, is already in T2'4 pusses5um fvm a source other then Subscriber or otherwise known in it, or was rightfully obtained by 72 from third parties, T2 shall bear no responsibility for its disclosure, inadvertent or otherwise. Upon reasonable notice, Subscriber may inspect T2's facilities during regular T2 business hours to assure Subscriber of TTS compliance with this obligation. Section 8.2 Obligation of Subscriber to Protect. The Software creates and stores databases of personal information of end -users and data relating to Subscriber on die computer system on which the Software is installed. Subscriber agrees to take all steps which it deems arc appropriate to provide adequate seenrity for that information. Article 9. RESTRICTIONS ON USE OF THE SOFTWARE Section 9.1 No Distribution. Subscriber may not distribute or sublicense the Software to any person. Section 9.2 No Sublicense; Persons Authorized to Use. Subscriber may not resell accounts or sublicense persons to use. the Software other than Authorized Concurrent UseSS. Section 9.3 No Reverse Engineering. Subscriber agrees that it will not create or attempt to create or permit others to create or attempt to create, by reverse engineering or otherwise, the source programs for the Software or ;my part thereof front the Object progna ll or from other information mudc available under the Agreement (whether oral, written, tangible or intangible). Section 9.4 Limited Copies. Subscriber is authorized to make copies of the SOftwum, to the extent copies are mic unubly required for back-up and arebival purposes or VERSION 071511 for iulemul business operations. Subschiber agrees that while rho Agreement is in effect, or while it has custody or possession of any property of T2, Subscriber will not copy or duplicate, or permit anyone else to copy or duplicate, any physical, magnetic, electronic or other version of the Software, beyond the cinnabar of authorized Production Copies subscribed pursuant to this Agreement, and Client Components which arc installed on Authorized Concurrent Users' devices. Subscriber may modify the documentation as necessary for its inkmal purposes, but shall nut site. or remove any proprietary notice in the documentation, including but not limited to '172's name, logo and copyright notice. Section 9.5 Export. Subscriber shall not permit any copy (in any medium) of all or any portion of the Software to be transmitted to or located outside of the United Slates except with U's prior written consent and compliance by Subscriber with any applicable export or import requirements. Section '3.6 Passwords. Subscriber shall not: (i) transmit or share identification and/or password codes to persons other than Ilse Authorized Concurrent Users for whom such codes were generated; (d) permit Authorized Concurrent Users to share identification and/or password codes with others; or (iii) permit the identification and/or password codes to be cached in proxy servers and accessed by individuals who arc not Authorized Concurrent Users. Article 10. PROPRIETARY PROTECTION Section 10.1'12 Confidential Information. Subscriber and Subscriber's subsidiaries recognize that the source code for the Software, and all specifications, tecbtiques, mmmels (other than end -user materials), System documentation and other materials relating to the operation of tire Software which are duclused or made available to Subscriber by 12 pursuant to this Agreement (collectively, "TZ Proprietary Material") are confidential, proprietary and trade secret and are protected by law. The Agreement dues not give Subscriber the right to have access to tiny Source code for the Software: Section 10.2 Other Proprietary Information. 72 and Subscriber each may provide die other information which it treats as confidential or proprietary and which either (a) it has marked "Confidential" or "Proprietary," or (b) a reasonable person in the circumstances would understand to be cuaddential or proprietary ("Proprietary Material"). The receiving party agrees: (a) not muse Proprietary Material it receives from the disclosing party too - my purpose other than performing its obligations and exercising its rights under this Agreement; (b) to exercise at least the same care to maintain the confidentiality of the Proprietary Material Its it does its own confidential infonnatiou of the same type; and (a) not In disclose the Proprietary Material to any third party, except lhal it may disclose Proprietary Material (i) on a confidential basis to its affiliates and its tend its affiliates' attorneys, accountants, consultants, lenders, potential lenders and financial, tax, technical mid other advisors who agree to keep it confidential, (ii) when required to comply with applicable laws or governmental regulations, (iii) in response to a subpoena or other legal process provided that, if permitted by law, it first notifies the disclosing party unit, to the extent possible, gives the disclosing party a reasonable opportunity to challenge the disclosure anti (iv) on tax returns or in connection with any examination or audit thereof, "Proprietary Material" shall not include information received from a party which: (i) is in the other parry's possession without actual or constructive knowledge of an obligation of confidentiality with respect thereto, prior to disclosure by (Ito party; (ii) is or subsequently becomes part of a public donaia through no fault of tlw other party; (ii) is disclosed to the other party by a third party having no obligation of confidentiality with respect thereto, and provided VEKSION 071511 the other party did not have actual or constructive knowledge that such information was wrongfully disclosed by such third parties; or (iv) is independently developed by the other party. Section 10.3 Reproduction of Marks. Subscriber agrees, that any copies made of the Software, Handheld Software, any other 72 Proprietary Material mid any other material obtained from T2 shall preserve unaltered patent, trademark, copyright, proprietary or confidentiality notices contained therein. Section 10.4 Patent and Copyright Indemnity. T2 wurrans that the Software and any materials developed by T2 and provided by 72 to Subscriber will not infringe on any United States copyright or patent. Should any legal action he made against Subscriber based on infringement of a United States copyright or patent as a result of the Software or the Professional Services, Subscriber shall promptly notify T2 and T2 shall defend the action at its expense. 72's liability in that event will be limited to defending the action and payment of ally resulting court costs and damages finally awarded against Subscriber in the action. TYs obligations pursuant to this Section 10.4 shall not apply to any infringement caused by or resulting front Subscriber modifications or attempted modifications to any relevant system, or from Subscriber's failure to implement changes or updates furnished by T2 to Subscriber during the term of this Agreement. Article 11. CORRECTION OF ERRORS Section 11.1 Correction of Functionality of the Software. 'Ilia liability of T2 for the functionality of the Software is limited, except as provided below in this Section, to the warranty provided in Section 1.3, If, thirty (30) days after the giving of the required notice described in Section 1.3, the Software fails to so conform, and the failure to conform is occasioned by'12's error and not opal star error, faulty data or hardware failw'es, then, Subscriber may, at its election at any time thereafter while the failure remains uncured, send a written notice that: (i) T2 has continued to fail to correct the failure; and (ii) Subscriber has elected to terminate the subscription of the Software. Upon the continuance of that failure for a period of thirty (30) days after such written notice of the continuance of such failure to correct and Subscriber's election to terminate has been given to by the Subscriber ("cure period"), Subscriber may, and its exclusive remedy shall be to, terrfmatc the subscription granted pursuant to tire Agreement within sixty (60) days after the expiration of the cure period by the destruction of the materials described in Section 7.4, and have returned to it, (to the extent the amounts have not been previously refunded) the Subscription pee, under Section 6.1 of this Agreement theretofore paid to'12 for We initial Subset iption'rnmr. If Subscriber fails to retain the materials within thirty (30) days after the expiration of the curt period, Subscriber shall have waived its right to termhtato file subscription laid to rcccive a refund of [Ire Subscription Pee. Section 11.2 Correction of Support Errors. U's liability under Article 5 is limited as provided in this Section 112, T2 commits to use couunercially Ito sortable efforts repair "minor" bugs, which are crurs that support a "work around" solution (a "Minor Error"), in the next production release of the Software, which would typically occur in ninety (90) days or less. New production releases (beta releases) are heavily tested by U's technical sluff lard, typically, by beta site Subscribers, meaning that "critical" bugs, which are errors that would stop a Subscriber from processing (a "Critical Error" slid together with a Minor Error, all "lirror") rarely make it into a production release. Neve:thcless, if a Critical Error makes it into a Prediction release, T2 commits to use conmcreially reasonable efforts to distribute a software patch within forty-eight (48) hours of T2's receipt of notice of tie Critical Error. If an Errror VERSION 071511 continues for a period of sixty (60) days after that detailed written notice has been given to T2 by Subscriber (`cute period"), Subscriber may, and its exclusive remedy shall be to terminate lire subscription of the Software by certifying destruction of the Software mid other materials in the matmer provided in Section 7.4 within thirty (30) days after the expiration of the taut period and, upon such certification, have returned to it the prorated consideration representing Subscriber's payment of the Subscription Fee for the days remaining in the then current Subscription 'rem computed from the date of M's receipt of the termination notice. Section 11.3 Correction of Hardware Errors. T2's linbihty under Article 2 is limited as provided in this Section 11.3 if after giving T2 notice of the Hardware Error, 72 fails to repair or replace the faulty hardware, then, Subscriber may, at its election at any time thereafter while the Ilardware Error remains uncured, send T2 written notice that (i) 72 has continued to fail to correct the Hardware Error and (if) Subscriber has elected to terminate the Hardware Support services. If the Hardware Error continues for a period sixty days (60) alter that detailed written notice has been given to T2 by Subscriber ("cure period"), Subscriber may, and its exclusive remedy shall be to request that T2 return the Hardware and have returned to it the prorated consideration representing Subscriber's payment for the Hardware repair and support. Section IIA Correction of Professional Services Errors. Subscriber shall notify T2 within thirty (30) days' time after T2 advises Subscriber of its completion of the work in question when the Professional Services do not execute in accordance with the Subscriber's specifications. The notification shall include the detailed variance and the information necessary for'12 to verify the variances. T2, upon actual receipt of tiro notification and verification of the detailed variances, shall modify the work so that it shall conform to tine Subscriber specifications. The passage of the tlurty (30) day period alter 'l2 advises the Subscriber that the work is completed without the notification described herein shall constitute final satisfaction of the express warranty and the warranty period described above. Article 12. REMEDIES Section 12.1 Waiver of Jury Trial. Each party hereto hereby waives to the fullest exterl penulted by applicable law, any right it may have to atrial by jury in respect of any claim, litigation or proceeding direcdy or indirectly arising out of, under or in connection With lies Agrecmmu. Section 12.2 Timc to Sue. No action, regardless of form, arising out of any of the harsacrions• pursuant to this Agreement may be brought by Subscriber more than one year after tlnc cause of action accrued. Section 12.3 No Other Liability. Except to the extent provided in Suction 2.2, Section 3.9 and Article 1l, T2 and its thud party licensors shall not be responsible for rely claims against Subscriber by arty, other party nor shall 72 or its third party licensors be liable for tiny property damage, personal injury, loss or inaccuracy of data, loss of profits or mveuucs, interruption of business, out-of-pocket expenses or any other direct, indirect, special, consequential or incidental damages, however caused, whether based on contract, tort (including negligence), strict liability, warranty, statutory rights or any other hasis arising out of Subscriber's are of the Software, the provision ot'support, consulting or the marketing, delivery or supporting thereof, or otherwise arising pumuatd to this Agreement. In the event any of the foregoing limitations of liability are void or are not effective, Subscriber agrees that the liability of'2 and VERSION 071511 its third party licensors for damages, if any, shall not exceed the Subscription fees paid by Subscriber to T2 for the three (3) months preceding the earliest event giving rise to the liability. With respect to Professional Services, in the event any of the foregoing limitations of liability are void or not effective, Subscriber agrees blab T2's liability shall in no case exceed the amounts paid to T2 by Subscriber under this Agreement for Professional Services, or parts thereof, involved in the claim and nut otherwise reimbursed. if only a part of the Professional Services is the subject of a claim, thee '172's liability shall be limited to the amount which T2 may have theretofore allocated to that part of the Professional Services of this Agreement, in die Quire, in any invoice of statement rendered, or to the amount as may be allocated by T2 in its good faith discretion to the part of the Professional Services. T2 shall not be liable for any lost profits or for any claim or demand against Subscriber by any other party. Article 13. DEFINED TERMS Section 13.1 Agreement. 'file "Agreement" hctween72 and Subscriber consists of this Software Subscription Agreement and the Quote. Section 13.2 Authorized Hosting Provider. An "Authorized Hosting Provider" means T2 or its subcontractors. Section 13.3 Authorized Purposes. Subscriber's "Authorized Purposes" am the use of the Software for the Subscriber's internal parking business operations. Section 13.4 Authorized Concurrent Users. 'file number of "Authorized Concurrent Users" is set fords in the Quote. Subscriber may increase the number of Authorized Concurrent Users in the mummer provided for in the Quote. Section 13.5 Client Components. The "Client Components" are components of the Software, which 72 makes available for downloading by Authorized Concurrent Users onto u personal computer of other personal electronic storage device solely for Authorized Purposes. Section 13.6 Cooperation. "Cooperation" is defined in Section 5.5. Section 13.7 Critical Error. A "Critical Error' is defined in Section 11.2. Section 13.3 Effective Date. The "Effective Date" is the (late of this Agreement. Section 13.9 Technical Support. "rechnical Support" includes: Service T2 Hosted Customers Self Hosted Customers Assistance with upgrading T2 Flex Software Included Excluded Assistance with upgrades to Oracle database releases Included Excluded VE16ION 07151 t Assistance with installation of Oracle patches Included Excluded Access to Crystal Reports library of 400r/-reports Included Included Authorized Concurrent Users may participate in on-line'r2 Systems training on Software upgrades Included Included Database rebuilds or repairs Included Excluded Section 13.10 Professional Services. "Professional Services" shall have We nreurual; set forth in Section 4.1. Section 13,11 Guaranteed Minimum Commitment. Subscriber shall be liable for the remainder of the current annual subscription fee once each annual tern commences. Notwithstanding anything to the conhury contained herein, if the Software ASP Subscription Agreement is terminated by T2 Systems for cause or by Subscriber for convenience prior to the expiration of the Guaranteed Minimum Commitment, the unpaid balance for the Guaranteed Minimum Commitment shall accelerate and be due and payable in full immediately upon acceleration. Section 13.12 Hardware Error. "Hardware Error" shall mean a defect in the Hardware that prevents Subscriber and its Authorized Concurrent Users &out accessing the Software trough the Hatdware. Section 13.13 Iardware Fee. "Hardware Fee" shall mean the fee set forth in the Quote for the initial tern of. The Hardware Fee is subject to change as provided in Section 6.2. Section 13.14 Hosting Error. "Hosting Error" shall mean a defect in the Hosting System that prevents Subscriber unit its Authorized Conwnent Users front accessing the Software through the [testing Services. Section 13.15 Hosting Services Fee. "floating Services pee" shall mean the fee set forth in the Quote for the initial term of the Hosting Services. The Hosting Fee is subject to change as provided in Section. 6.2. Section 13.16 Hosting Services. "Hosting Services" shall mean that T2 will install, operate, and maintain the Software on T2's Application Server, and provide to Subscriber access to'M's Application Server sufficient for Subscriber to exercise its subscription rights granted herein and for the Authorized Concurrent Users to cummmnicutc with, scams tied use the Software by way of the Internet. Section 13.17 ]testing System. "Hosting System' shall meanthe computer and network equipment owned and maintained by T2 or its designated third party and the operating software licensed by T2 or its designated third puny. Section 13.18 Installation Date. "Installation Date" shall menu the dale the Flex application goes into production mode. V nasloN 07151 l Section 13.19 Minor Error. A "Minor Error" is delined in Section 11.2 Section 13.20 Production Copy. A "Production Copy" is an executable code copy of the Software which is used on a computer system to process live data. Copies of all or a portion of the Software whether on multiple computers or on a computer system will constitute a single Production Copy so long as a single database is used by all of the copies of the Software. T'he number of Production Copies authorized under this Agreement is one, unless othenvise set ford[ fit the Quote. Section 13.21 Professional Services Fee. "Professional Services Fee" Shall mean the fee set forth in the Quote for the initial term of the Professional Services. The Professional Fee is subject to change as provided in Section 6.2. Section 13,22 Proprietary Material. "Proprietary Material" shall have the meaning set forth in Section 10.1. Section 13.23 Remote Access Equipment. "Remote Access Equipment" shall mean the equipment necessary for Subscriber to access the services on the Internet. The Remote Access Equipment is to be provided by Subscriber. Section 13.24 Subscriber. The "Subscriber" is identified in this agreement. Section 13.25 Subscriber Data. "Subscriber Data" shall mean the data provided to T2 by Subscriber and the Authorized Concurrent Users, including darn regarding Authorized Concurrent Users. Section 13.26 Subscription Fee. The "Subscription Fee" for the initial Subscription Tenn is set forth in the Quote. The Subscription Fee for the terms after the initial Subscription Tbmt may be changed as provided in Section 6.2. Section 13.27 Subscription Term. The initial "Subscription Tenn" conmrences on the earlier of the tnstull Dale or three (3) months item the Effective Date and extends for the period specified in the Quote, Each subsequent Subscription Term is for a period circus (1) year. Section 13.28 Softnvm•e. The `:Software" is specified in the Quote and consists of 72 Flexrl9 and at[ related suliwure components metalling but not limited to, handheld ticket -writer software as specified in the Quote. Section 13.29'1'arget Res poits e'I'inte. The "'Target Itespouse Time" is the time period during support hours in which T2 will strive to communiente with the Subscriber acknowledging a support request by the Subscriber. Section 13.30 Quote. The Software Subscription Agreement is the document executed by T2 and Subscriber which incorporates the "Quare" by refcraue. Section 13.31 Standard Technical Support"Standaztt Technical Support" includes responses to questions of error by email or telephone. VCas1oN 071511 Section 13.32 T2 Proprietary Material. "T2 Proprietary Material' is defined in Section 10, 1. Section 1333 Time and Materials Basis. "Time and Materials Basis' means an lruurly basis at the rate specified in the Quote, together with reimbursement of expenses. Section 1334 Web Site. "Web Site" means the Web Site prototype provided by 72, and subsequently customized at Subscriber's request. Section 13.35 Web Site Fee. The "Web Site Nee" for tire Web Site is identified all the Quota. Scutimn 13.36 Wrap -Up Period. "Wrap -Up Period" shall have the meaning set forth in Quote Article 14. MISCELLANEOUS Section 14.1 Escrow of Source Code. T2 entered into a source code escrow agreement with Lincoln Parry Software, but. (the "Escrow Agreement") providing for the deposit of the source code programs for due executable version of the Software into an escrow account. The Escrow Agreement further provides, subject to the terns and conditions for which Subscriber agrees to he bound, that the escrow agent may release the source code to Subscriber upon the Occurence of one of the release event(s) specified therein. T2 will provide a copy of the Escrow Agreement to the Subscriber upon request. The Escrow Agreement provides that the Trustee shall deliver it copy of the source code to the Subscriber only if the Subscriber has satisfied the procedures mud conditions set forth in the Escrow Agreement, including, the execution of the Non -Disclosure Covenant attached thereto. Upon release of the source code, the Subscriber is authorized to copy, modify, and create derivative works based on the source code for the sule purpose of debugging and maintaining the Software. The Subscriber shall remain entitled to keep a copy of the source code so long as the Subscriber continues to pay the Subscription Fee under this Agreement. Also, Subscriber shall pay to T2, within fifteen (15) days of receipt of invoice, the annual administrative fee of Lincohn Parry Software, Inc. Subscriber shall remain obligated to pay T2 the Subscription fee aotwitlistaudiug the release of the source code for the Software from the escrow. Section 14.2 Notices. Any notices or other comnlaniWtions required or permitted to be given or delivered under the Agreement shall be in writing aid shall be delivered to'I2 at its address specified on its web site or to Subscriber at its address specified in the Quote or to such other address as either party may, from time to time, designate to the other in writing. NI nolices to 12 shall be to the attention of the CEO of T2. Any notice given shall be deemed to have been received on the dale on which it is delivered personally, by courier service or by facsimile or, if mailed, on the third business day next following rho mailing thereof. Section 14.3 No Partnership. Nothing in this Agreement shall be deemed W create It partnership, joint venture or agency relationship. Section 14.4 Survival. The provisions of Section lA, Section 3.9, Section 3.10, Section 6.3, Section 6.5, Section 7.4, Section 7.6. Article S, Article 10, Article 11, Article 12, Section 14.4 and Section 14.6, and all obligations of Subscriber to pay or reimburse T2 for any amounts arising under this Agreement, shall survive any termination of either this Agreement or the nun -exclusive subscription granted hereunder. Section 14.5 Publicity. Subscriber agrees that T2 may identify Subscriber as a customer in the customer lists or other similar communicatiorn. T2 agrees not to use Subscriber's name In any other public releases or in any case histories except with Subscriber's prior consent which Subscriber agrees not to unreasonably withhold or delay. Section 14.6 Governing Law. Regardless of the place of execution, delivery, performance or any other aspect of this Agreement, this Aytiement and all of the rights of the pallier under this Agreement shall be governed by, construed under and enforced in accordance with the substantive Inw of the United States of Americo end of the State of Indiana without regard to conflict of laws principles. Section 14.7 Severability. If any provision in the Agreement shall be held to be in contravention of applicable law, the Agreement shall be construed as if that provision were not a part thereof and in all other respects the terms of lire Agreement shall remain in full force and effeet. Section 14.5 No Waiver. No waiver of any covenant or condition or the breach of any covenant or condition of die Agreement shall be deemed to constitute a waiver of any subsequent breach of the covenant or condition nor justify or authorize a non -observance upon any occasion of that covenant or condition or any other covcumrl or condition of the Agreement. Section 14.9 Entire Agreement. The Agreement (consisting of this Software Subscription Agreement and the Quote) constitutes the entire agreement between the parties hereto with regard to the Software, any Hosting Services, any Development Services, and any support of the Software. Section 14. 10 Additional Work. If Subscriber requires additional work and/or integrationsnot included iu this Agreement and attache[ Quote,'12 and Subscriber shall negotiate the additional work, mutually agree on the scope and compensation, and document the terms; in either a separate Agreement or an amendnreul to this Agresument per the purchasing requirements of the Subscriber. Section 14.11 Piggyback Cooperative Purchasing. Subscriber agrees to allow this contract to be used for purposes of piggyback purchasing. Under piggyback purchasing, Subscriber and '12 agree to open the contract for the use of other public or state agencies with the stipulation the other state agencies will be offered the same prices, terms, and conditions as that of Subscrihow.'file contract is mandatory for Subscriber and optional for all other state agencies. Section 14.12 Arbitration. Except for actions to protect Proprietary Rights and to enforce an nrbormor's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agrccutcut or a breach thereof shall be submitted to and finally resolved by arbitration untie the rides of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in nccordanec with AAA rules. The arbitration shall take place in Indinnnpolis, Indiana. The arbitrator shall apply the laws of the State of Indiana to all issues in dispute. The VERSION 071511